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Retention Pond Ownership and Maintenance

by richardp

I live in a subdivision in Cobb County Georgia. The subdivision contains 2 lakes. The HOA and Covenants were established in 1989. Up to 2007 the lakes were treated as common property.

In 2007, 5 homeowners whose property fronts the smaller lake were advised that that lake had been mistakenly treated as common property for the subdivision and was in fact a private lake owned by the 5 owners.

Recently it was decided by the HOA that the lake needed to be dredged to restore the depth. Exploration of the plats and deeds for those properties shows no reference to the pond being there for retention purposes. They impose no requirements on the lake other than outlined in the covenants.

The reference in the covenant defines the use of the lakes, to include fishing, swimming, water removal, etc. A sentence in that covenant section says "Declarant and other property owners adjacent to the lake (but outside the development) have the sole and absolute right to control the water level of such lake(s) and to control the growth and irradication plants, fowl, reptiles, animals, fish, and fungi in and around such lake(s). Owners of the lots which are adjacent to the lake (the lake lots) shall be required to maintain such grass, planting, or other support to prevent erosion of the embankment adjacent to the lake. If owners fail to do so, the HOA has the right to enter the property to correct issues at the expense of the lake lot owners. Only easements on the property are sewer line easement.

Does this wording in any way place a requirement on the lake lot owners to maintain the depth of the lake? The part about outside the development is most confusing.

Where can the requirements for maintenance of the lake be found if not in the covenants, on the deed or the plat?

Editors Reply: This is interesting, because you have identified most of the places where a maintenance requirement could or should be found. Be sure to check with the county to see what their records may show about conditions of approval of your subdivision. Yes, those would be shown on the plat in most states, but there is always a possibility of other wording in county records.

While talking with the county, also inquire about county ordinance requirements and state law requirements about stormwater retention. Perhaps there is a general requirement that would pertain to all situations and therefore not be shown on the plat.

Yes, we would agree that the covenant reference to adjacent property owners not in the development seems confusing, if indeed all of the adjacent (meaning next to) property owners lie within your subdivision. If the attorney who drafted the covenants is still practicing in your area, you might try asking that person about this.

It does seem very unfair that an HOA board can call for dredging, but not contribute financially to that project. However, your particular covenants seem to be imply no financial obligations on the part of the HOA pertaining to this lake. Still, if we were in your shoes, we would ask the HOA to contribute financially to this project, just to see where that discussion would go.

On the other hand, the five property owners have a problem if the water level in the lake is gradually rising, due to siltation on the bottom. So they too have a real stake in resolving the problem.

After doing a little preliminary research, including talking to the county and the attorney who drafted the covenants, as well as checking into the dollar amount involved, you may want to call a community meeting to discuss this matter as amiably as possible. Ideally, the HOA board should do this, and explicitly invite and plan with the five impacted property owners. If they are unwilling or unable to do so, however, it may fall to the property owners to call the meeting between the HOA board and themselves. In that event especially, this could be a very informal meeting or even a backyard barbecue to try to set the tone for a pleasant discussion of the issue and what to do.

Appropriate stormwater retention is important to the larger community, so if this lake is supposed to serve a purpose in holding back stormwater when there are major rain events, it would be good to establish agreements among all concerned about how that retention can be maintained in a functional state.

If there really is no retention function imagined or needed for this lake, then it seems to us that the adjacent property owners can maintain it for their private enjoyment.

As always when we answer questions about complex situations, these observations are only a starting point. Covenants need to be drafted much more carefully to convey the right intent to those who are trying to interpret them years later.

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